"Plate sin with gold, And the strong lance of justice hurtless breaks; Arm it in rags, a pygmy's straw doth pierce it."
(King Lear, Shakespeare)
Imagine that you have just awakened. You are still in your boxer shorts preparing to get ready for your day at work.
There is a knock at your door. You open it to five uniformed, armed policemen and one investigator enter your apartment waving a warrant in your face.
You are told that you are being placed under arrest for felony theft. You are allowed to put on your shoes and then hauled to jail in handcuffs and shackles.
You have been a law-abiding citizen all your life and have never stolen anything since your mom made you return the penny bubble gum you lifted from the store when you were 5 years old. But suddenly your life has been turned upside down because of a single complaint filed by a spurned lover.
It's funny how you can assume something, but not really know it until you experience it first hand.
Something that I have assumed, inspite of the patriotic propaganda that insists the American legal system the best in the world, is, like most things in the United States, it depends entirely on how much money one has.
Something that I now know firsthand, because the above scenario is currently happening to my loved one, is that the American legal system appears to be neither equal nor just.
An innocent person can spend time in jail, lose property, a job, the freedom to travel and even to drink a beer, all prior to trial all because of the accusation of one vindictive person.
Do you have $5,000 to retain the services of a criminal attorney, plus the $120 hourly fee?
Do you qualify for a public defender?
Do you feel confident that a court-appointed lawyer would represent you well?
Although all classes commit crime, the poor experience higher rates of arrest, criminal charges convictions, long prison sentences and denial of parole. The winnowing process ensures that most rich criminals never see the inside of a prison, while overflowing them with the poor.
Despite the constitutional right to counsel established more than 40 years ago, many states have yet to provide capable lawyers to represent the accused, and the resources necessary to conduct investigations and present a defense, points out Stephen Bright.
Bright is the author of the Annual Survey of American Law, New York University School of Law.
"A poor person may be without counsel when bail is set or denied and during critical times for pretrial investigation. He or she may receive only perfunctory representation - sometimes nothing more than hurried conversations with a court -appointed lawyer outside the courtroom or even in open court - before entering a guilty plea or going to trial. The poor person who is wrongfully convicted may face years in prison or even execution, without any legal assistance to pursue avenues of post-conviction review," stated Bright.
One study found that most public defenders spend an average of five to 10 minutes with their clients. Even then, the subject of conversation is not the facts of the case, but plea-bargaining strategies, according to Jonathon Casper, Criminal Justice: Law and Politics.
A lawyer assigned to represent an indigent defendant is paid far less than he or she could make doing any other type of legal work and is denied the resources necessary for a full investigation and the retention of necessary expert witnesses.
Yet it is the defendant who pays with his or her life or liberty for the lawyer's ignorance of the law or failure to present critical evidence, cites Bright.
Public defenders win dismissals or acquittals in 17 percent of their cases, compared to 18 percent for assigned attorneys and 36 percent for privately hired counsel, stated Dallin Oaks and Warren Lehman in Law and Order: The Scales of Justice.
The situation becomes even worse in death penalty cases. Because of the extreme poverty of most of the defendants, and the huge expense of trying a prolonged capital case, few lawyers of established merit are willing to take them.
"The most fundamental reason for the poor quality or absence of legal services for the poor in the criminal justice system is the refusal of governments to allocate sufficient funds for indigent defense programs," said Bright.
Legislatures in many states have failed to adequately fund public defender programs leaving public defenders with overwhelming case loads and the immense pressure of being responsible for the lives and liberty of too many fellow human beings.
The rich have several important advantages when it comes to handling the legal justice system. They can afford bail, which allows them to conduct their own investigations and prepare for trail. They can afford better attorneys (by itself an enormous edge), better expert witnesses, better private detectives, better alibis.
In fact, rich corporations or individuals often threaten to put up such a huge legal battle that courts often seek to plea bargain away or even dismiss the charges.
There is also bias in sentencing. The rich either write or lobby for the very laws that purport to oversee their behavior.
Harsh sentences for the poor are softened whenever legislators write them for the rich, even though their crimes may be many times greater.
Crimes of the poor are called robbery, larceny/theft and burglary.
Crimes for the rich are called fraud, embezzlement and income tax evasion.
The average time served for robbery is 46.5 months; the time for fraud, 13.6 months, according to the Federal Bureau of Prisons' statistical report.
Judges have purportedly shown themselves reluctant to make common criminals out of the community's best and finest.
The apparent biases have created wide disparities in sentencing. For example, millionaire Jack Clark received no fine and only one year in jail for cheating stockholders out of $200 million.
Yet in the same courthouse, a minimum wage worker who had stolen $5,000 received four years in prison. That is 160,000 times the punishment, reported Blake Fleetwood and Arthur Lubow in New Times.
A study of federal and state courts found that the poor were not only found guilty more often, but that they were recommended for probation at a much lower percent and given suspended sentences significantly less often than the upper classes.
The reality in the United States today is that representation by a capable attorney is a luxury, one few of those accused of a crime or in prison can afford.
Legislatures will not pay for it, courts will not order it, and most members of the bar are unwilling or financially unable to represent a poor person in a criminal case without adequate compensation.
The preciousness of life, liberty, fairness and adherence to the Bill of Rights in a time and a culture of misplaced values and indifference to injustice must be addressed by individuals, bar associations, law schools and law students if you and I are to remain safe from the very institution designed to protect us.